This
case resembles a game of whack-a-mole. After a year of
litigation and an adverse summary judgment ruling, Plaintiffs
now seek to amend their Complaint a second time to raise an
entirely new legal theory (Docs. 33-34, 41). An overview of
the procedural history of this case is helpful to an
understanding of whether another leave to amend is
appropriate.

Background

Original
Complaint. Plaintiffs filed their Complaint in March
2016 -- more than a year ago (Doc. 1). The thrust of the
Complaint was that the City of Rossford illegally destroyed
Plaintiffs' property, based on a demolition order that,
in turn, was based on an invalid settlement agreement
(id.). Bauer was allegedly arrested for
“protesting the demolition of his own house, ”
and police officers told him they would “accompany him
to City Council Chambers” if he decided to go to the
City Council meeting that evening (id. at
¶¶ 27-28). According to Bauer, this
“prevent[ed] him (again) from being heard regarding the
wrongful demolition of his property and den[ied] him his
First Amendment and Due Process rights” (id.
at ¶ 28).

The
Complaint enumerated five claims against the City for: (1) an
illegal taking in violation of the Fifth Amendment; (2)
deprivation of procedural due process under the Fourteenth
Amendment; (3) violation of the Fourth Amendment's
guarantee against unreasonable searches and seizures; (4)
demolition of property without notice under Ohio law; and (5)
wrongful demolition (id. at ¶¶ 31-53). The
wrongful demolition claim was also brought against the
City's contractor, Competitive Hauling, Inc.
(id. at ¶¶ 51-53).

The
City answered in April 2016, and this Court held a status
conference in June. At that conference, the City argued there
was no legal basis for the Complaint's first, fourth, and
fifth claims. This Court ordered counsel to exchange
authorities concerning the arguments raised by the City (Doc.
6). A few weeks later, Plaintiffs requested leave to amend
the Complaint to address the City's arguments. That
request was granted (Doc. 10). Plaintiffs also acknowledged
that the facts relevant to their Amended Complaint were not
in dispute. Both parties then agreed to submit the legal
issues for this Court to decide on cross motions for summary
judgment.

Amended
Complaint. The Amended Complaint lists the City as the
only Defendant, and it enumerates claims for violation of:
(1) procedural due process under the Fourteenth Amendment;
(2) the right to be free from unreasonable searches and
seizures under the Fourth Amendment; and (3) the freedom of
speech under the First Amendment (Doc. 11 at ¶¶
29-40). With respect to the Fourth Amendment claim, the
Amended Complaint states -- in conclusory fashion -- that
“the actions and inactions of the City as alleged
herein constitute a denial of Plaintiffs' right to be
free from unlawful searches and seizures, and are contrary to
the Fourth Amendment of the United States Constitution”
(id. at ¶ 34). Plaintiffs explained the theory
underlying that claim as follows: “[T]here was no valid
order for the demolition. In addition, there was no valid
settlement agreement to provide a basis for the demolition
and the related police presence to enforce it. As such, the
police officers were essentially sent to enforce an invalid
civil settlement agreement” (id. at ¶
25). Notably, the Amended Complaint makes no mention of the
term “probable cause.” And to the extent a lack
of probable cause for arrest is implied, the only factual
basis alleged is the purportedly invalid demolition order.

Summary
Judgment. On August 11, the parties jointly submitted
Stipulations of Fact to be used by this Court in deciding
cross motions for summary judgment (Doc. 13). In a status
conference with this Court (Doc. 14), the parties also agreed
that the threshold issue of the settlement agreement's
validity would likely be case dispositive. The parties
briefed summary judgment motions (Docs. 15-17, 19-21), and
this Court held a record hearing on October 14 (Doc. 22). At
this Court's request, the parties submitted additional
briefing on an issue raised by Plaintiffs (Docs. 23-24). On
November 4, this Court granted the City's Motion and
denied Plaintiffs' Motion, holding both that the
settlement agreement was valid and that Plaintiffs' due
process claim failed in any event (Doc. 25).

Following
the summary judgment ruling, this Court held another status
conference. At that conference, Plaintiffs requested two
weeks to evaluate what remained of their First and Fourth
Amendment claims in light of this Court's ruling. That
request was granted, and this Court scheduled a further
status conference for the following month (Doc. 26). At that
time, despite having nearly a month to consider the
implications of this Court's ruling, Plaintiffs still
were unable to articulate a basis for proceeding with their
First and Fourth Amendment claims. Instead, they sought
further discovery to supplement the record and more time to
consult with a criminal lawyer to determine the viability of
a Fourth Amendment claim. This Court granted Plaintiffs an
additional three weeks (id.).

Proposed
New Complaint. On December 27, Plaintiffs filed a Motion
to Supplement Record, asking to re-open discovery and
briefing on the issues resolved by summary judgment (Doc.
27). This Court denied Plaintiffs' Motion and gave
Plaintiffs two weeks to advise whether they had any remaining
claims (Doc. 30). At a status conference on January 18, 2017,
Plaintiffs reported they reviewed some legal authority
suggesting the police may not enforce a civil contract, and
they stated their intention to proceed with their Fourth
Amendment claims on that basis. This Court ordered counsel to
exchange the relevant authorities and discuss the merits of
moving forward.

The
following week, Plaintiffs requested leave to depose the
arresting officers to assist in determining the validity of
their Fourth Amendment claim (Doc. 31). Over the City's
objection, this Court granted Plaintiffs' request
(id.). Following those depositions, Plaintiffs
announced they wanted to proceed with their Fourth Amendment
claim on a new basis: the officers lacked probable cause to
arrest Bauer. This Court pointed out that the pending
Complaint makes no reference to “probable cause.”
Accordingly, this Court suggested Plaintiffs may not have
adequately pled that as a basis for holding the City liable
(Doc. 32). Plaintiffs requested and were given until March 10
to seek leave to amend to cure any deficiencies in their
Amended Complaint (id.).

Plaintiffs
then filed a proposed Second Amended Complaint that -- for
the first time --mentions probable cause (Doc. 34-1).
Plaintiffs argue there is no need to amend because their
First Amended Complaint adequately pleads First and Fourth
Amendment claims. Alternatively, to the extent this Court
disagrees, they seek leave to amend (Docs. 33-34). The City
opposes the Motion (Doc. 41), arguing: (1) the officers had
probable cause to arrest Bauer; (2) Plaintiffs were
previously afforded an opportunity to amend; (3) Plaintiffs
have caused undue delay and appear to have dilatory motives;
(4) the City did not have notice of Plaintiffs' probable
cause argument; ...

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